Re: Alaska Ruling Could Build Roads to Ruin on Public Lands

A little-noticed court ruling last November has breathed new life into a long-expired, one-sentence 1866 law that already wreaked environmental havoc on public lands for more than a century. Known as Revised Statute 2477, the law reads: "The right-of-way for construction of highways over public lands, not reserved for public purposes, is hereby granted".

The law was used to build thousands of miles of roads, especially in the Western states and Alaska. Even on lands reserved for parks, wildlife refuges, and other public uses, states and counties could still assert a right-of-way if they could show that a road existed before lands were withdrawn.

The Ninth Circuit Court of Appeals' ruling appears to have revived the statute -- repealed by Congress in 1976 but allowed to persist in the form of pre-existing claims -- raising the specter of a highway building boom across the Western states, even on what were assumed to be protected public lands. The Court ruled that a right-of-way exists whenever there has been historic use of routes between two fixed points.

This key issue of rights-of-way is also affected by a 1988 policy promulgated by then-Interior Secretary Donald Hodel. His loose interpretation of the statute has amounted to a giveaway of federal protection for public lands. For example, the Hodel policy says a track could meet the highway requirement if it was used by a "pedestrian or pack animal", opening the way for dogsled routes and hiking trails to become paved thoroughfares.

With 4,000 claims pending on Bureau of Land Management-administered lands in Western states, and potentially 16,000 more, the Alaska decision is sure to embolden states and counties already claiming rights-of-way under the repealed statute, according to Sierra Club Legal Defense Fund attorney Larry Silver.

Sierra Club and other environmental groups have joined the federal government in petitioning the court for a rehearing.

What You Can Do: Call or write Interior Secretary Bruce Babbitt: Department of the Interior, 18th and C Street NW, Washington, DC 20240, (202) 208-3100.

Urge him to rescind the Hodel policy when he releases proposed draft regulations for Revised Statute 2477 in March. For more information, contact Jim Young in the Sierra Club's Alaska Field Office, (907) 276-4048. (From the March, 1994 Sierra Club Yodeler)